Advisory Opinions - The Tech Term Arrives

Episode Date: April 25, 2023

It’s a SCOTUS packed pod featuring an Alito dissent going into his ~feels~. Plus, AO is getting ready for the much-anticipated Tech Term(s), and Sarah needs David's reassurance that everything will be alright. On the docket: Dueling certs over state actors blocking users on social media Alito bring out the hot sauce for shadow dockets debate The tweet the triggered David Can prosecuting threats of violence chill free speech? Show Notes: -Josh Blackman's article for Reason magazine -Justice Clarence Thomas dissent in Elliott V. O'Mara Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isker. That's David French. And it's an all- Court day. We're going to start with a couple cert grants. We're going to go to that spicy Alito dissent and then we'll end on true threats and the argument in the counterman case, which David, I'm still reeling from. I've been reeling. I am reeling. I have so many thoughts. I need to express them. I need you to tell me it's going to be okay. I'm not sure I can tell you it's going to be okay, Sarah, but I can. Yeah, I can't wait. I can't wait. But we got lots of spicy stuff to talk about before then. We do. So the court granted cert Monday morning in two cases that we had been kind of watching.

Folks may actually remember the other related-ish case called Trump v. Knight First Amendment Institute. This was about when Trump blocked people on Twitter. That case was mooted out when he then left office. But it was just a matter of time until similarly situated cases came to the court. They were relisted and today they were granted. So the first one is called O'Connor Ratcliffe v. Garnier. It is two members of a Southern California school board who the Ninth Circuit said, by blocking constituents on Facebook and Twitter, that was state action for First Amendment purposes.

Then you have Lindke v. Freed. This is the city manager of Port Huron, Michigan. In that case, the Sixth Circuit held that it did not constitute state action when the city manager blocked some constituents on Facebook. So we have, I mean, this is the, you know, exactly when the Supreme Court grants cert. You have dueling circuit court decisions on the same issue. The cases haven't been consolidated yet. That doesn't mean they won't be. I'm sure they'll be heard the same day, whether they're consolidated or not. This will be fun times.

Yeah, yeah. I actually wrote a bit about the Trump case back in the day. And the real issue there was, the question was, does Trump truly control his Twitter account? Because the Second Circuit, when it was talking about, when it held that Trump had violated the First

Amendment by blocking someone from Twitter, talked about and compared Trump that, or compared that to, say, leasing out a theater, for example, where you have temporary control by the government and that temporary control is still control for First Amendment purposes. control is still control for First Amendment purposes. And I responded to that by distinguishing between the kinds of, you know, control that you have contractually when you lease out, say, a theater versus the absence of control that you have over your typical social media account. So this is what Twitter's terms of service were at the time. We may suspend or terminate your account or cease providing you with all or part of the service at any time for any or no reason, including but not limited to, we reasonably believe, one, you violated the terms of the Twitter rules or Periscope

community guidelines. You create risk or possible legal exposure for us. Your account should be removed due to prolonged inactivity or our provision of the services to you is no longer commercially viable. So any reason, including some broad reasons, and is that control? And I think that's going to be one of the key issues, Sarah. Yeah, I'm a little bit torn on this one. So and let's be clear, this is not when you have an official government page on social media. This involves in both cases, personal social media accounts

that are used to communicate official business, government, you know, things that are happening in their jobs as government employees. So that's where it gets a little more complicated on that side. But David, in what you're talking about, I think that's relevant. But I also think it's relevant that what the lawsuit is about

is action that they themselves took and whether that is state action by virtue of them taking it. So, you know, if Twitter then deleted their accounts for violating their policy or just for funsies, I don't think anyone's arguing that that would then be state action then deleted their accounts for violating their policy or just for funsies. Right. I don't think anyone's arguing that that would then be state action because they happen to be state employees, obviously. Yeah.

But when they choose to block someone, is that somehow made state action? I think it's a pretty close call. And I think that it'll be a fun oral argument because I think we're continuing into those tech terms. You know, we have the two cases this time on the two social media cases related to terrorism. That'll be decided this term.

These two cases are going to come next term and we're still waiting on the cert grants in the Texas and Florida social media bill cases. Asterisk, of course, my husband is involved in the Texas one. Yeah, this is another one. Producer Adam put in the, what was it, the subtitle of the last episode

that I'm stumped by how the DeSantis, you know, capital punishment jury, non-unanimous jury verdict in capital punishment in Florida. I was stumped how that's going to go. I'm stumped how this is going to go because you hit the nail on the head. You are still talking about the action

that the government official takes by blocking or muting or whatever, but they're taking an action in a forum that isn't their forum with content they don't even actually fully own. Another thing that I talked about in that case is how Twitter itself grants itself rights to your content. I love this. By submitting, posting, or displaying content on or through the services, you grant us a worldwide,

non-exclusive, royalty-free license with the right to sub-license to use, copy, reproduce, process, blah, blah, blah, everything. So it is in a form that public figure doesn't control with content that isn't actually truly their content. It's going to be interesting, Sarah.

I'm looking forward to that one. I had this conversation this weekend that I thought was interesting. It was coming up in the context of, you know, all of these government officials having to deal in this new world of AI and tech space. And, you know, we talk about government officials getting quite old these days. You know, they're making laws for a world that they themselves are not fluent in. It's a second language for some, but it's not a native language for any, really, at this point.

And the person was talking to me about the use of AI and these incredibly realistic deep fake videos. By the way, on the audio side, did you see that that Drake, The Weeknd song that is totally fake? It is neither Drake nor The Weeknd. It's like rocketing up the charts.

Exactly what was predicted, except much, much earlier than I think anyone thought it would. Yeah. And it's about their fictional relationship with someone, some woman. Anyway. So this person was like, yeah, what will happen when we get into the child pornography world?

And you're using these incredibly realistic deepfake videos for child pornography. And I was like, actually, in 2002, the Supreme Court said that that was protected First Amendment activity. that was protected First Amendment activity to have sort of cartoon the 2002 version of a deepfake child pornography video as long as you weren't using any children. 20 years later, David, I'm not sure that case comes out the same way. I'm not sure it comes out the same way when it can be also, it's photorealistic

and quite conceivable that that photorealism could make you think you were looking at somebody who you knew, or you could make it look like a real person. It's a gross, awful, horrible thing to even contemplate. But yeah, your friend's right. This is going to be a legal issue. So the tech term is going to be the tech terms.

This is going to go on for a long, long time as this technology bumps into not just new law, but even existing law like that 2002 case where it was dealing with a different technology, frankly, and a different reality. So that will be fun. We'll keep an eye on that. Otherwise, a lot of cert denials this

week. But David, on Friday evening, we had a spicy Alito. Oh, yeah. Oh, yeah. I reread his dissent from denial again this morning. And I just thought it's even spicier than I remembered. And I remembered it being spicy. First of all, this was reported that the Supreme Court stayed all of Judge Kazmarek's ruling in the Mipha Preston case, thereby there is no longer a nationwide injunction chaos, you know, dueling injunction situation, that stay will be in effect through this litigation, basically, at the Fifth Circuit.

David, I want to tell you what the court decided, but first, I want to read you an email exchange that I had at 4.45 p.m. on Friday. Okay. Have I seen this? No, you haven't. Okay. A friend asked, what No, you haven't. Okay.

A friend asks, what's your prediction on Mifeprestone? Me, they stay at on standing. Alito writes a concurrence about how the court's standing jurisprudence is a hot mess.

Thomas dissents without comment. Okay. So this comes out then like two hours later and I'm not right, but I'm not far off. Okay, so this comes out then like two hours later. And I'm not right, but I'm not far off. Right. So on the one hand, you have Alito writing.

You have Thomas dissenting without comment. Alito's is not on standing though, interestingly, because the majority doesn't write anything at all uh and that was a little surprising and that leaves us a little unclear on several fronts one we don't actually know how many justices voted for this day we know it had to be at least five and we know it's not more than seven because of alito and thomas dissenting but we don't know who they are. We don't know how many, and maybe more to the point, we don't actually know the reasoning. So I think you and I certainly think that the standing point is strong, of course.

So reading here from Josh Blackman over at Reason, he, I think, does a very nice job of lining up all of the reasons that the majority could have issued the stay that we don't know. Perhaps five justices thought that the plaintiffs lacked standing for some or all of their claims.

Maybe five justices thought that some of the claims were barred by the statute of limitations. Maybe five of the justices thought all of the APA claims were unmeritorious. Maybe five of the justices thought that the Com APA claims were unmeritorious. Maybe five of the justices thought that the Comstock Act claims were unmeritorious. Maybe five of the justices thought that the threat of irreparable injury to the government and to the public was so high

that a stay was warranted while the litigation proceeded. But who knows? As we have been told incessantly, when the Supreme Court issues an order on the emergency docket, we do not know the court's reasoning. And David, some of this matters because if they issued that stay on standing, for instance, we don't need to go through all this stuff that's going to be happening next. Right. If it was just on the irreparable injury to the government while the litigation is proceeding, then we do need to go through all that's happening next. If it's on simply likelihood of success on the merits, that's, you know, hey, we're looking at this. I think this person has the slightly better argument, but that's why we do the litigation. Again, you'd still want to go through the actual litigation to do this. you'd still want to go through the actual litigation to do this. But man, okay. So Josh also is going to walk through what happens next in this case before I want to get to the Alito concurrence. But let's talk about what's going to happen after.

The case is going back to the Fifth Circuit. An oral argument is going to be held. And now as we're recording this, David, we're at 22 days from now or so, really soon. We don't know who's on the panel. We actually won't find that out until the week of oral argument. That is different by circuit, by the way,

but in the fifth circuit, you find out that week. And okay, so first he notes, if the fifth Circuit panel agrees with all or part of the stay panel's order, the Fifth Circuit panel's order, and that means the government loses, that's actually great for the government because you've got that Supreme Court stay in place preventing this from going anywhere. Right. So as he notes, the Solicitor General could file a quick cert petition to get the case teed up for the long conference for a decision by June 2024. But I think the more likely path is an orderly petition for rehearing on bunk. The SG will be in no rush. The Supreme Court granted a stay for the entire duration of the litigation,

so the status quo will remain. If a panel of the Fifth Circuit rules for the plaintiffs, and again, these are the doctors, I doubt that there are enough votes to reverse on bunk. You'd have dissents. It would get messy. It would drag out a long time. And that could leave you with the case

not going until like 2025. And that's kind of a mess. Yeah. Okay, there's a second path. The Fifth Circuit rules for the government. So then it's now on the plaintiffs. What do they want to do? The plaintiffs can seek rehearing en banc.

And as Josh notes, I think there is a substantial likelihood that the plaintiff petition is granted. But that process will take a lot of time, as previously noted, at least in the Fifth Circuit, the en banc process can take a year or more. The majority en banc opinion on the Fifth Circuit

are often very, very fractured with several judges writing concurrences and dissents. The upshot of seeking en banc would be that the case doesn't even get to a cert petition until late 2024, if not early 2025. The Supreme Court would not even touch the issue until after a change in administration. Why is that relevant? Because if a republican wins the presidency you could in some ways mood out this case by changing the fda regulations uh banning telemedicine visits ending the mail delivery of this drug it would just change the case entirely and probably mood it out so that's where the case could go from here but regardless it's getting argued in short

order at the fifth circuit um but in some ways regardless, it's getting argued in short order at the Fifth Circuit. But in some ways, David, it gets a lot less interesting for the time being, really, until we get that Fifth Circuit opinion, because that Supreme Court stay is sitting over all of this. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So let's talk about Justice Alito's feelings. Would you like to start? As soon as I saw that Alito was dissenting, I immediately asked, was this about

the merits? I wanted to see what he had to say about the merits. But no, Sarah, this is not about the merits. This is about, wait a minute, what do you want us to do here? Why do you keep critiquing us and then turning around and demanding that we use the shadow do here? Why do you keep critiquing us and then turning around and demanding that we use the shadow docket? Why do you keep critiquing us for using the shadow docket and then go ahead and use it? So here's what he says. In recent cases, this court has been lambasted

for staying in district court order, quote, based on the scanty review this court gives matters on its shadow docket, unquote. And that's Kagan dissenting from Merrill V. Milligan. In another, we are criticized for ruling on a stay application while, quote, barely bothering to explain our conclusion, unquote, a disposition that was labeled as, quote, emblematic of too much of this court's shadow docket decision-making, which every day becomes more unreasoned, unquote. Kagan again. Some shots

across the bow here, Sarah. And in a third case in which a stay was granted, we are condemned for not exhibiting the, quote, restraint, unquote, that was supposedly exercised in the past and for not, quote, resisting the government's effort to shortcut normal process. This time he's picking on Sotomayor. And? And? Wait. And, oh yes, Barrett. Barrett. Justice Barrett concurring in denial of the application for injunctive relief. So Alito is kind of saying,

hey, wait a minute. He's saying, I didn't agree with these criticisms, but if they were warranted, then are they not warranted here? Why are we rushing in here? After all, as he goes to point out, the court at that time was just a little more than three weeks away. The Fifth Circuit at that time was a little more than three weeks away from a full hearing.

So what are we doing here? When is it okay to use the shadow docket? It seems to be the Alito dissent. And that's not even until he takes a shot at the Biden administration. But maybe we should pause there. Sarah, what did you think? So on the shadow docket criticisms, I've said this before, I think there are good shadow docket criticisms and I think there are bad ones. And frankly, the bad ones are, I don't like the outcome here. Therefore, because it's on the shadow docket, I don't like the shadow docket.

We've seen this before, right? That it's not about the process. It's just about when my side wins, the court is legitimate. When my side loses, the court is illegitimate. And the shadow docket just provides another vehicle to add to that criticism because then it's not just the outcome. It's like, well, not only is the outcome not what I like, but I don't even get to see the reasoning or the vote. So it's also secret and not transparent outcome that I don't like. I reject those criticisms. However, there are some problems with what's going on in the emergency docket, as we've talked about before. My issue is not the transparency or that we don't know

how people voted, or even here that we don't know why they voted the way that they voted, they voted the way that they voted, but rather that I don't have a good sense of what they're doing vis-a-vis the status quo. So for instance, the status quo is actually not one of the factors, but we all know that it is one of the factors. So what is that status quo for instance i think it would be very easy to define the status quo is whatever was the status quo before the challenged action but in this case where you challenged an action from 2000 that the fda took the status quo under that definition would be no mifeprestone so the plaintiffs would simply win because mifeprestone the very be no mifeprestone. So the plaintiffs would simply win because mifeprestone, the very approval of mifeprestone is what's being challenged. So the status quo under my definition would be 1999, no approval of mifeprestone. Well, that clearly isn't the status quo when you've had a drug on the market for 23 years under FDA approval.

years under FDA approval. But it's hard to come up with another definition of status quo that doesn't then start getting very messy, which is why Will Bode, for instance, in writing this up on that irreparable injury prong, which can get status quo-y feelings, the justices have repeatedly said that whenever the government is enjoined from enforcing its policies it has suffered an irreparable injury we've talked about this when i've complained about some lower court decisions where they're like oh well the government's you know the state of virginia's law is being enjoined we talked about this in the thomas jefferson high school admissions case, that on the one hand, you have students who are being discriminated against on the basis of their race, potentially. And on the other hand, you have the government action policy being enjoined.

Both of those are irreparable injury. So how do you weigh them? And that also then is hard when both sides have irreparable injury. I just, that's my complaint. And it's not a shadow docket complaint. It is that the factors for stays have been difficult to discern other than vibes. Malleable. And I think vibes here told us

this was definitely getting stayed. So we all knew it was getting stayed at least people who follow the court closely and aren't um partisan actors I'll call them non-partisan actors knew this was getting stayed but not because of the factors we knew it because of vibes that's probably not great well and I think you know the justice alito is getting at a point here that is valid which which is, well, sometimes, as you were saying, sometimes shadow docket is criticized, sometimes shadow docket is celebrated.

It's usually criticized or celebrated depending on how it comes out for your team. No question about that. And then, but I don't think as far as this question of the shadow docket in general, because it's an equitable, it's based on equitable principles. And for those who don't know what that means, in essence, what that means is the court is exercising its own judgment as to whether or not this rises to the level of importance for

this kind of rapid intervention. Now, that means that you're always, from now and forever, so long as there is such a thing as a shadow docket, which there kind of has to be because there will be super important things that come up that the Supreme Court has to deal with in much faster than the normal course of business. So, as long as that possibility exists, Sarah, we're going to be arguing over its exercise as to when it's appropriate, whether it's appropriate. But the thing that really got me, there's a tweet here. I just have to rant about this before we get to Justice Alito's other criticism

of the Biden or of the government's position here. But here's what I want to rant about. Lawyer called Andrew Seidel, don't know him, says attorney fighting Christian nationalism, defending the First Amendment. Hey, look, I like attorneys. I like fighting Christian nationalism.

I like defending the First Amendment. So I might like this guy, but I don't like this tweet. And this is what he says. The crazy thing about this order is how easy and obvious it should have been. It should have been a foregone conclusion. The relief we are all feeling is such an indictment

of where this institution is. What? What? Okay, so you get an order that you want, that you expect, and we don't know if it was 7-2. I mean, we know there were two dissents, but we don't know if it was 7-2. But it's possible it was 7-2. So you get exactly what you are looking for from the court, and you're still indicting the court. Yes. When you lose, it undermines the legitimacy of the court. But now when you win,

it undermines the legitimacy of the court because you weren't sure you would win. And that lack of surety, confidence, also is an indictment of the court, not of your inability to understand what the Supreme Court does. Cool, cool, cool. I have never been 100% sure that I was going to win a case.

Every single case that I've ever had, even when I thought it was a slam dunk, I was nervous until the order came out. That doesn't mean I doubt the legitimacy of the courts. It means that there's an other side making serious arguments that have to be defeated, right? And I think a lot of this, Sarah, goes to, and please forgive me, I need And I think a lot of this, Sarah, goes to, and please forgive me,

I need to do just a diversion on this, because some of this goes to this ongoing argument you see on Twitter and elsewhere of, has the legitimacy of the court been called into question of late? And that just really frustrates me. It really frustrates me because, A, we have a shining sterling example That just really frustrates me. It really frustrates me because,

A, we have a shining sterling example of how the court was above and beyond politics. And it was relatively recent. And it was called the election contest. I've gone through this again. If the court was just a pure political animal, then we would have seen more evidence of that. If the lower courts were just pure political animal, then we would have seen more evidence of that. If the lower courts were just pure political animals, we would have seen evidence of that

in the 2020 election challenges. Instead, as I've argued to a number of people, don't be looking at the courts through a political lens, although I'm not gonna say amongst the hundreds of district court judges. Again, we brought up, for example, the special master order down in the Southern District of Florida as being particularly egregious. So I'm not going to vouch for all hundreds of federal judges. the judges on a philosophical axis as opposed to a political axis, you're going to get so much more close to accurate than if you just do what Twitter or unfortunately a lot of the media says

and say, this is a politicized institution, et cetera. I, you know, you said this earlier, Sarah, I didn't have much doubt that there was going to be a stay here I didn't have much doubt at all my other complaint along those exact lines is that if you're only a casual follower of this stuff the cases that are going to get the most attention are the most politically salient cases

and so I think if you're just sort of headline reviewing or even if you're a reporter who covers the you the national politics, but isn't a Supreme Court reporter, you're also only going to see the political cases. And it can be really easy from just a cognitive standpoint to remember the times that fit with your narrative

and forget the times that don't fit with your narrative. And I think that the 2020 election cases, Bostock, this stay, are going to be quickly forgotten as people instead talk about Dobbs or the Harvard affirmative action case, et cetera, that fit their narrative. And that's where I start getting very frustrated because they then project those cases only onto the court. And then when the next emergency stay application comes up, that's how you get this tweet,

which is, since I didn't know how this was going to come out, that is an indictment of the legitimacy of the courts. Well, I'm sorry that you weren't paying attention, but that's not my fault. Well, and the flip side of this is what I sometimes hear on the right,

which is our justices always flake out. Their justices are always on their, quote, their side. And yet, you know, we could point to religious liberty case after religious liberty case after free speech case after religious liberty case where that's not the case. In particular, Justice Kagan and Justice Breyer before he retired. So it is absolutely the case that in certain areas, and again, I will put this more on judicial philosophy than pure politics, although I'm never going to say I can't peer into somebody's head and discern all the mixes of factors. But it is absolutely the case that there are certain issues where there's a pretty monolithic wall on one side or the other. But in those issues, I was talking to somebody the other day, and one of the questions was why the monolithic wall on abortion?

And I said, well, I don't think, and Sarah, you can tell me if I'm wrong. If you have an originalist judge, I've never heard a serious originalist case for abortion rights in the U.S. Constitution. And so if the judge there is an originalist judge, there just has never been, that I'm aware of, an originalist argument supporting Roe. All right, let's move to Justice Alito's second argument. So again, that first argument is that the shadow docket is a bit of a mess in terms of its factors. We're granting, we're denying,

we're getting rewarded for granting, we're getting criticized for denying. Oh, nope, now it's reversed because you like the outcome. All right, I think we've talked about that. Number two, though, gets to your equity point, David. He says, our granting of a stay of a lower court decision is an equitable remedy, really about fairness, right? What is the best sort of status quo we can preserve as this litigation is being resolved? What should be the process during that time?

It should not be given if the moving party has not acted equitably. And that is the situation here. The FDA has engaged in what has become the practice of leveraging district court injunctions as a basis for implementing a desired policy while evading both necessary agency procedures and judicial review, citing Arizona and the San Francisco case. David, I'm sure you remember both of these because we talked about them at great length, but it's this idea that you don't have to go through the Administrative Procedures Act as long as you can get a nationwide injunction.

Then you save two years, get exactly what you want, and the parties aren't actually adverse to one another because they both want the same outcome. That's a big problem. That's where you then have states like Arizona trying to intervene, the government then trying to block those states from intervening because again,

the two parties are not actually adverse to each other. The Supreme Court granted cert in two of those cases and in both cases, they've had to dig them. So Alito's bringing that up, which I think is, I think it is his strongest argument. I kind of wish he would have led with it because the court hasn't resolved it yet and they know that they need to, they just haven't been able to find a good vehicle. So

continuing with Justice Alito, the Washington District Court enjoined the FDA from altering its current practice regarding the Fiprestone, something that the FDA has never hinted it was contemplating. The FDA did not appeal that appealable order, and when seven states that might have taken such an appeal tried to intervene, the FDA opposed their request. This series of events laid the foundation for the government's regulatory, quote, chaos argument. That's the dueling injunctions.

That's why they needed to stay at the Supreme Court. And his argument is, wait a second. Then that's not chaos. That's not dueling injunctions. You just wanted the one injunction that, again, we've noted the timing of that one also looked quite coincidental. Yes.

It was interesting timing. It came out two hours after the Judge Kazmarek decision out of Texas. Huh. And it created the atmosphere by which you could get this really quick vehicle to the Supreme Court. So, David, what do you think of that argument? I thought it was interesting. I thought the part where he's talking about, well, the judge essentially enjoined something that the FDA is not wanting to do. So what it looks like is the judge trying to enjoin the other judge

is what it ends up looking like. And so, yeah, it's messy. It's sort of gamesmanship, it feels like. So on the equitable point, you know, there's this sort of a clean hands doctrine that when you're coming in to get the equitable relief from the court, you should have clean hands. What would be the equivalent? It'd be like coming in without bad tweets you need to have clean hands and so what Alito is going at here is the clean hands issue essentially

saying wait a minute this whole chaos is kind of manufactured in the normal course of business what you would have is a fifth circuit case that's going to be heard in 26 days as of the time of the, as of the time of Alito writing. And that's all normal and that's all fine. And that's all the way the system works. And then there's this sort of, you know, chaos agent here of this other court ruling, which was sort of engineered to create the chaos, to be a chaos agent. And that's not clean hands. And I think that's, I'm totally with you, Sarah. I thought the first half was venting a little bit

in a way when everybody knows that we're going to have our disagreements on the margins as to when the shadow docket should be used. That felt a little more like venting, like spicy Alito. And this feels more like solid Alito. Yeah, there's some equitable principles here that are cutting against the government. All right. With that, should we move on to the oral argument from last week that gave us both heartburn? Yes. Yes, I have. I have heartburn, Sarah, but I'm so eager to hear your heartburn first. All right. First of all, let's set up the facts of this. We did talk about this case when it was initially granted cert because I think you and I both feel a particular interest in this case because it's hard. And because it goes against our sort of First Amendment absolutist instincts in a lot of ways. All right.

So a country music singer started getting a torrent of social media messages through all sorts of mediums from someone she didn't know. Those messages sort of, you know, just were wild in their frequency and included things like, die, don't need you, F off permanently, staying in cyber life is going to kill you, knock knock, five years on Facebook, I miss you, only a couple physical sightings. You've been a picker-upper for me more times than I can count. So he gets arrested and charged with stalking, basically, and argues that, in fact, this is protected under the First Amendment. I want to get to some of his arguments in a moment,

but I think it's worth noting, and this was highlighted in the amicus brief filed by Alison Ho and her team over at Gibson Dunn on behalf of the singer, by the way. And this is a problem in some of these cases where, you know, the criminal defendant gets to make his argument, the state gets to make their argument, but the person who actually was getting these threats

isn't necessarily entitled to have a voice. And so I'm glad that this amicus brief was filed. I think this is really relevant. The person who had been making these threats, whose name is Counterman, had actually just been released from federal prison. In 2002, he was charged with 10 counts of a federal criminal threatening statute. He had told two of the women that, quote, people in this position that I'm in right now have been known to have gone and killed people, take nine millimeters and blow their heads off and shit like that. I know where you're all living.

He told another woman he had all your addresses and guess what? You ever heard of a letter bomber guess what i'll be coming at you with kerosene he pleaded guilty to all 10 counts was sentenced to 27 months in prison then in 2011 he was indicted for violating the federal criminal threat statute again this time he was charged with leaving a woman a voicemail saying i'm coming back to new york by the way okay maybe this month in march? I may be coming back this month or next month. I don't know which. I'm looking forward to meeting up with you. I will rip your throat out of sight. He was sentenced to 32 months in prison. Within nine months of his release from federal prison,

and while still on supervised release, he embarked on a campaign of stalking, harassing, and threatening this country music singer for over two years. She tried blocking him over and over again. She never responded to these messages. But she was so terrified that, in fact, she quit her career as a country music singer as she became increasingly scared that he was going to show up at one of her shows,

she didn't know what he looked like, et cetera. So this had a huge effect on her life. She gave up her career because it involved public performance. Now, the legal question for the court is, what is the standard for determining a true threat? It's not her subjective belief in whether it was threatening. But is it an objective, reasonable observer?

How would an objective person, not an eggshell plaintiff or anything else, an objective person perceive the messages? Or does the defendant get to introduce evidence of his subjective intent? And then what is the standard for that? Does he have to have knowledge that his words could be taken as a threat? Does it have to be reckless? And so that's what the argument turned on, David. And I went into this thinking,

of course it can't turn on his subjective intent because we've seen this play out many times. A mentally ill person or a delusional person who believes that there is a relationship, obviously his subjective intent is not that he's threatening her life. But when that delusion is pierced or when he is rebuffed in some way,

then they can become violent. So the only way you could ever get to a delusional, mentally ill person sending these messages would then be when they've actually become violent. That would be nuts to me. So clearly you have to have just some sort of objective intent standard. That's not how the oral argument went. I'm going to lose this badly. went, I'm going to lose this badly. Yeah. You know, what was interesting to me, and this is, you know, Gorsuch was talking about an objective test was problematic because people have become, quote, increasingly sensitive. Thomas says, quote, we're more hypersensitive about different

things now and people could feel threatened in different ways. But that's not objective test. Objective test is a reasonable person test. It is not the subjective, well, I'm a snowflake now and snowflakes think more things are threats. No, this is the reasonable person standard that has really been a cornerstone of the law

for a really long time on a whole lot of fronts. I really like this meme of this leaning building that's looking like it's about to collapse and this one post holding it up. And the leaning building is the entirety of American law. And the one post is the reasonable man test. And, you know, I think, huh, the reasonable person test is something that has been quite common. It's heavily utilized, even in context that touch upon the First Amendment, such as harassment law. Sarah,

harassment law depends very much on a reasonable person test. And so I didn't see this, and when we were walking into this, quite frankly, I did not see this as something that was terribly threatening to the First Amendment to imply an objective reasonable person test.

It felt like very conventional harassment law, very conventional. And then the threatening messages, you know, when you look at what the messages were, many of them, and there were a couple of them that were even worse to me than the ones that you said, such as, for example, I'm currently unsupervised. I know, it freaks me out too, but the possibilities are endless. Like, wow. And as you said, she withdrew from public life

and that's not a snowflakey thing when you've gotten all of these messages from the same person and you have been blocking and blocking and blocking. So I have to say, I didn't see the major threat to free speech here. Well, it gets to why, you know, in that strict scrutiny test, for instance,

A, the compelling government interest has to be included. But also, David, in the First Amendment context in particular, we look at, Jonah Goldberg likes to call it a slippery slope argument. I don't like that term because I think it sort of comes with a pejorative right off the bat. But this idea that you could get to speech that very, very much you need to protect, disfavored, but nevertheless valuable speech. And so the question here, and Justice Kavanaugh did ask this, like, what is the valuable speech that we're accidentally chilling here

if we say that this is an objective test? Like, is this the speech we're protecting? Because this is valueless speech. Right, and it does meet that objective test, and I don't think it's even hard for it to meet the objective test. Now, I also think that it's so over the top and that it would have met some of

the other tests, such as the recklessness that was discussed. Yeah. Yeah. I hope. I hope. Maybe. Yeah. That's my saving grace for this, by the way, is that the Supreme Court, and I think we're looking here, I mean, Roberts clearly, Gorsuch clearly were on not an objective test. Kagan and Kavanaugh seemed a little bit more interested in something that at least this would be prosecutable. That's all I'm looking for. I understand the problem that Justice Barrett brings up

of a professor talking about the history of lynchings and showing pictures of lynchings and talking about lynchings and that a student in the classroom then feels under physical threat somehow. I don't think that passes any objective test, but let's even say that her concern is warranted. I think there is still a way to write an opinion

that allows you to capture this, where the person is mentally ill. That's what a lot of these stalking cases are. It's someone who's delusional. Why else would you be sending all of these messages? And so my hope is that the test would certainly allow for this prosecution, which is what I care about.

David, I was gonna walk through two previous cases that came up a lot in this case. One is the Virginia v. Black case, and the other one is that St. Paul case. And I thought those were worth a quick mention before we continue. What say you? Now a good time?

Oh, yeah, go for it. All right, so first of all, third case. Texas v. Johnson decided in 1989, 5-4, holding that burning the American flag was protected speech under the First Amendment. It's symbolic speech. And so even though it's conduct alone, that that's still speech. Okay, that's going to be relevant then to our 1992 case, RAV versus City of St. Paul. Now, the ordinance was called

the St. Paul Bias-Motivated Crime Ordinance. And it said, whoever places on public or private property a simple object, appellation, characterization, or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender, commits disorderly conduct, and shall be guilty of a misdemeanor. That case was, in fact, unanimous,

although there were a lot of concurrences. There were three different concurrences written with a whole bunch of different justices making that up. Interestingly, Justice Scalia wrote the majority opinion joined by Rehnquist, Kennedy, Souter, and Thomas. Note that, Souter and Thomas. All right, and that's going to take us then to Virginia v. Black, and I want to get into the facts of this case, because this is going to be the case that's going to get talked about the most in this oral argument, David.

And I also think the facts are relevant just as we talk about race issues in the United States, and we sort of, you know, you talk about slavery, the Civil War, Jim Crow, and then we kind of fast forward to present. And this case is fascinating to me because it's decided in 2003. And here are the facts. On May 2nd, 1998, Richard Elliott and Jonathan O'Mara attempted to light a cross on the property of Elliott's neighbor who was Black in Virginia Beach, Virginia. On August 22nd, 1998, Barry Black held a Ku Klux Klan rally on private property and with the consent of the owner in Carroll County, Virginia. A neighbor and the county sheriff witnessed the event and heard attendees make negative comments

concerning Black people. During the rally, a cross was lit. Black, this is the guy with the Ku Klux Klan rally on private property, was arrested and charged with violating a Virginia statute, outlawing cross burnings. All defendants were found guilty. The cases were combined for the Supreme Court oral argument.

And I'm taking this, the fact summary from Wikipedia for those who are curious what I'm reading from, but it's quick and it's correct. But this was a Virginia statute that banned cross burnings as prima facie evidence of intent to intimidate. By far, that Virginia statute was basically struck down in part, at least, that you can't switch the burden away from the state to

have to prove that factual element on the intent. And you see why that's connected to this case, because it has to do with that intent to intimidate, intent to threaten, and it wasn't objective, or at least that's the argument about it. And David, I mean, the fact that those facts were from 1998 and it's such close, it's a good reminder.

We're not that far away from people putting a burning cross in their neighbor's yard because their neighbor's black. Cool. But I also thought that the dissents were notable in that case. One, Clarence Thomas writes this incredibly powerful dissent about the history of cross burning in the United States. And you know what? We can even put it in the show notes because I just, I think it will surprise some of you. Let's say if you haven't been reading a lot of Justice Thomas, you know, the, what is it? The tracks, the older albums.

Yes. So we'll put that in the show notes. And then you have Justice Souter arguing that cross burning, even with the proven intent to intimidate, should not actually be a crime because of that City of St. Paul precedent. Because it's a statute, sorry, a content-based distinction. So Justice Souter with the hot take there. So you have a real reversal with Justice Thomas saying cross burning is a particularly outrageous form of intimidation. And then

Justice Souter saying, no, actually, cross burning would be a content-based discrimination, just sort of the opposite of what you'd imagine those two guys writing, I think, again, for people who are following only the partisanship of the court and not the actual ideology. I'm glad you brought those up. And, you know, it's I think in the counterman case, when you're talking about these two cases, again, this is not a content based. these two cases. Again, this is not a content-based, this isn't a content-based restriction. This is, are you engaging in conduct that can include speech that will cause a reasonable person to feel under threat? And this really does go, Sarah, as to one of the purposes of criminal law is to protect people from the exact kind of terror that she obviously and quite reasonably experienced. I mean, this is something that essentially ends her career. And so you're not talking about a content-based regulation here. What you're talking about is, did this conduct, which included speech, would it cause a reasonable person to feel a sense of threat?

And I don't know, I've looked at this after looking at the oral argument, and again, I'm with Kavanaugh, what's being chilled here? What kind of speech is being chilled? And that the classroom example that Justice Barrett used, I wasn't convinced by it because,

again, the reasonable person standard says a historical lesson on past injustice would not cause a reasonable person to feel threat. And again, I get it that this reasonable person is kind of a fictional creation, but it's a fictional creation that the judicial system has been dealing with for a very, very long time and knows how to deal with. That being said, there were points in the oral argument that I was, if not convinced, my position moved, let's say.

So I want to read this exchange. It was also the funniest exchange of the whole thing. It was brought up several times after this exchange happened. It was also the funniest exchange of the whole thing. It was brought up several times after this exchange happened. So John Elwood, who's arguing on behalf of countermen, says, with respect to context and whether context will sort all of this out, context makes a big difference in a lot of cases.

But part of the problem is the foreseeability of that. We already had a little discussion of the many ways I will kill you could be meant. He's referencing when he was talking about a sibling saying, I will kill you in the context of who ate the last brownie is very different than the context here. And when you're talking about speech, this is again, why I refer you to the amici. The amici, by the way, David, are very much against us fire the aclu adf yeah all of these groups believe that it should be a subjective what the speaker intended should at least be part of the factor again whether that's recklessness or knowledge whatever that may be that it is not an objective test so we're on the wrong side of all of our friends and some of our not friends. I know. It's so, it's, I know.

So continuing with his argument, speakers have to have some sort of confidence in advance about whether what they're saying is going to wind them up in trouble. In the past, intent has been a bulwark because speakers know their intent. And if so, if their intent matters, that gives them comfort in that what they say, they were going to say without criminal punishment. But when the standard is what a reasonable person would think, then you're thinking, well, what does that mean? And frequently, you don't know what the answer to that is. We could have a conversation, the conversation about I will kill you, could have gone on another five minutes and we not have, sorry, and we might not have gone to ground. Justice Barrett, maybe you should be careful

if you're going to say something like I will kill you or I'm going to burn it all down or I'm going to shoot up a school. Elwood, well, again, you know, my mother said to me virtually every day of my childhood. Justice Barrett, I'm going to kill you? Elwood, drop dead. Yeah. And everyone laughs. And yet, you know, I was never in fear because of that. And so, you know,

context means a lot, Barrett. Hopefully context gave you some reassurance, Elwood. It was about the only thing that did. But yes. Thank you, Mr. Elwood. So that is great. I don't know what that means about John Elwood's childhood.

Not great, I would say. Justice Gorsuch, by the way, later in the argument forgets what the exact phrase was. So I'll just read this because it was also pretty funny. No, I'm talking about the message, not to whom it was directed. Forget about that. Put that aside.

The words, I'm going to kill you, or I've forgotten what Mr. Elwood's mother said to him. Justice Barrett, drop dead. Justice Gorsuch, drop dead. Thank you. Those words have very different contexts among friends, among colleagues, among family members, even among strangers sometimes.

I'm sure if we went through the comments section of any daily newspaper, we'd find some of those words. So David, what do you make of that? That if someone overheard, you know, your mom telling you to drop dead, that then she could be charged with a crime and that her subjective intent couldn't be introduced in the state of Colorado? Well, OK, hold on a second. As I recall, we're talking about the state of Colorado as a standard that what 20 or so states have.ribles have not occurred, that people are perfectly capable of discerning between, you know, you telling, say, a teammate of an opposing team right before the tip-off, we're going to kill you guys, that people are capable of discerning this

under the objective person test, that Colorado is not a free speech hellhole with a lot of chilling going on here, which again goes to the Kavanaugh point. So this seems to be in some ways, Sarah, maybe a solution in search of a problem. I don't know. I am. I take it very seriously. Who's on the other side of this from us? I know. I know. I'm with you. I'm with you. other side of this from us. I know. I know. I'm with you. I'm with you. When you see fire in particular, when you see ADF, I know. It makes me think, it does make me think what's wrong with them. My first impression is what's wrong with me? In fact, it didn't even occur to me until you just said that, that I could think of it the other way. Oh, I'm allowed to think about what's wrong with them? No.

I'm looking forward to this decision. Obviously, since this is one of the last cases to be argued this term, we're at the end of April here, I don't expect this case to come out until mid to late June at this point. Not because it's one of the hottest button cases, but just you have to write the thing. So I think we're looking at two plus months

until we see a decision here. We're going to lose, David. I don't know how badly we're going to lose. I hope that the losing this will still encompass this behavior in question. Because again, I think what's actually at issue here in this one case is what many, many cyber stalking cases are, which is a delusional person

who subjectively believes they're in a relationship with the person that they have no relationship with, and that when that delusion is punctured in any way, they become violent. And the idea that for this set of delusional people, their speech can't be punished, even though it is a true threat in every sense of the term,

except their subjective intent, we have to wait for them to become violent, that seems to be turning this whole thing on its head. But I take pretty seriously the concerns that all of these groups have about the chilling effect issue. And I thought Elwood did a great job arguing this case and saying, it is important when you're speaking to know what the law is. And if the law is simply an objective person standard, that doesn't give you a whole lot of insight into whether what you're saying is prescribed in some way. The Virginia v. Black case is worth a read. Again, all of it. We'll put all of it in the show

notes, but especially that Justice Thomas dissent. I just think it's pretty different. You're talking about the changing of the burden on intent and burning a cross on private property with the consent of the owner and all of that. That's pretty different on whether that's a true threat as compared to putting it on your neighbor's lawn, which everyone agrees is one. That's very different than this case. And so I'm just not sure that I'm persuaded by the Virginia v. Black analogies as some of the justices seem to be. Yeah, I'm going to be very interested to read the opinion. I've got to reach out to Greg Lukanov, my friend at FIRE, and have him tell me why I'm wrong.

But I'm with you. I see that lineup and I'm like, what's wrong with me here? But yeah, I didn't find, when you're talking about the objective, when you're talking about the reasonable person standard, I didn't find the pushback that said we're getting increasingly sensitive to be all that persuasive because the reasonable person standard is supposed to guard against these sort of temporary fluctuations of mores. So,

yeah, I'm extremely interested to read this opinion, Sarah. All right. We're going to wrap up our Supreme Court of Bonanza here with that. And I'll just take a couple notes for those who send us suggestions, etc. in the comments section or Twitter or otherwise. Thank you. We tend not to do district court level cases because they're fact intensive. That's usually why we wait for the district court to make factual findings and wait for those to go to the appellate courts because we're not great at sifting through all the discovery and the fact-based arguments. So A, sending us district court things that are pending before district court complaints type stuff, generally we don't cover. Obviously, there's exceptions. Two, state legislation that's been proposed until it has actually been signed by the governor or it's, you know,

sitting on the governor's desk and he said he's going to sign it. Like we're not formalists about this whole thing. But crazy people introducing crazy legislation for press release purposes, we tend not to give them the benefit of their press release and actually cover their crazy part.

So yes, by the way, Governor DeSantis did sign into law that death penalty statute that we talked about. So, David, that falls into my, like, not formalist, but, like, it was going to get signed. There's a couple pending bills in Texas. They have passed through the legislature. I'm just waiting on a statement from Governor Abbott

that he's going to sign them, and we'll cover those in the next podcast, I'm sure. So, don't worry. But that being said, we love when y'all flag stuff for us, especially those appellate cases or new laws in your state. That's great because we can't keep eyes on everything.

We are not omniscient by any means. So keep the flags coming. Hop in the comments section if you're a dispatch member and otherwise. Thank you so much for joining us.